This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In re Suzanne H. Boeck, petitioner,





G. Robert Boeck,



Filed August 19, 2003


Gordon W. Shumaker, Judge


Washington County District Court

File No. F2885407



Suzanne H. Boeck, 4900 South Ulster Street, No. 3-112, Denver, CO 80237 (pro se respondent)


Tracey A. Galowitz, Lawson, Marshall, McDonald & Galowitz, P.A., 3880 Laverne Avenue North, Lake Elmo, MN 55042 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N



On appeal after remand, appellant-husband argues that the district court abused its discretion by setting his maintenance obligation for the year 2001 at an amount exceeding respondent-wife’s needs and awarding wife his previous maintenance overpayments as attorney fees.  Because the district court did not abuse its discretion in determining appellant’s maintenance obligation or in its award of attorney fees and did not err in calculating appellant’s income, we affirm.



            The parties’ marriage was dissolved on May 11, 1990.  Appellant G. Robert Boeck was ordered to pay to respondent Suzanne H. Boeck permanent spousal maintenance in the sum of $1,800 each month and an annual lump sum of additional spousal maintenance in an amount representing 50% of appellant’s net annual income over $60,000.  Appellant was also ordered to pay $1,400 each month as child support. 

            In February 2001, the district court ordered an increase in appellant’s monthly child support obligation to $2,048 and in his monthly maintenance payments to $6,000, eliminated the lump-sum-payment obligation, and found appellant to be in contempt of court.

            Appellant then moved to amend the February 2001 order, so as to reduce his child support and spousal maintenance obligations and to vacate the finding of contempt.  In August 2001, the district court vacated the finding of contempt, but denied the other motions.  In October 2001, appellant sought review of the district court’s order by this court.

            This court affirmed the district court’s August 2001 order, but remanded to the district court to make adequate findings regarding respondent’s needs so that appellant’s motion for reduction of spousal maintenance could be properly determined.

            In August 2002, the district court found that appellant had overpaid spousal maintenance for the years 1991 through 2000 by $41,319.33, but also that appellant had wrongfully spent funds from an account the parties had set up for their son.  The district court subtracted the funds from the appellant’s overpayment of spousal maintenance and awarded the difference to respondent for attorney fees.

            In September 2002, the district court ordered appellant to pay an additional $18,554.86 in attorney fees to respondent.  In November 2002, appellant moved the district court for an order finding that he had overpaid $48,000 in spousal maintenance in 2001, vacating the previous orders awarding attorney fees, reducing his spousal maintenance to $2,000 each month, vacating the contempt-of-court finding, and asking for attorney fees.

            In its order filed December 26, 2001, from which this appeal is taken, the court denied appellant’s motions to reduce his $6,000 monthly maintenance payments for the year 2001 and to vacate the finding of contempt, and upheld the 2001 award of spousal maintenance, the current monthly maintenance obligation of $2,500, and the award of attorney fees of $37,874. 


1.         Maintenance award

The standard of review of a district court’s award of spousal maintenance requires us to determine whether the district court abused its discretion.  Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) (citation omitted). 

There must be a clearly erroneous conclusion that is against logic and the facts on record before this court will find that the trial court abused its discretion.


Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). 

Appellant argues that the district court abused its discretion because it erroneously calculated that respondent’s monthly deficit is $2,161.80, yet set maintenance payments at $6,000.  Appellant’s basic argument is that the district court abused its discretion in its order for maintenance payments during the year 2001 because the district court erred in its determination of respondent’s needs.

Minn. Stat. § 518.64, subd. 2 (2002), provides for maintenance modification upon a showing of one or more of the following:

(1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party; * * * (4) a change in the cost of living for either party * * * any of which makes the terms unreasonable and unfair.

            On a motion for modification of maintenance, the court shall apply the factors for an award of maintenance under section 518.552.  Minn. Stat. § 518.64, subd. 2(c).  A district court may award spousal maintenance if the court finds the spouse seeking maintenance lacks sufficient resources to provide for reasonable needs.  Minn. Stat. § 518.552, subd. 1(a).  In determining the amount and duration of the maintenance award, the court must consider the needs and resources of each party.  Minn. Stat. § 518.552, subd. 2.

            The record shows that the court awarded respondent $6,000 each month as spousal maintenance for the year 2001.  The court considered the needs of both parties, assessing their reasonable monthly expenses and their incomes.  The court concluded and the record supports that appellant “could afford to pay the $6,000 per month in spousal maintenance,” that both the appellant’s monthly and lump-sum maintenance payment obligations

were regularly made late and, consequently, [appellant] is partly responsible for [respondent’s] incurring interest bearing credit card debt that she is, to this day, still trying to pay off[,]


and that the current award of maintenance is “nearly $600 less than [respondent’s] reasonable monthly needs.”  The district court reasoned that it would aggravate the respondent’s already precarious financial position by requiring her to refund spousal maintenance funds previously received by court order.

            The issue of establishing maintenance is, in essence, a balancing of the recipient’s need against the obligor’s ability to pay.  Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982).  Here, the district court balanced respondent’s need against appellant’s ability to pay, focusing on the financial hardship to the respondent resulting from appellant’s failure to make maintenance and child support payments on time. 

The district court did not award maintenance of $6,000 each month in error, but rather, in determining the needs and resources of the parties, the court looked to the expenses of the parties, including a substantial debt for respondent, and balanced the needs of the respondent and her ability to meet those needs against the financial condition of the appellant as provided under Erlandson.  See id. at 39-40.  The district court’s denial of appellant’s motion to find overpayment of spousal maintenance for the year 2001 is within the district court’s discretion.  There is nothing in the record that demonstrates an error in facts or in calculations of respondent’s needs.  Rather, the record supports the district court’s analysis of how to address the parties’ needs and abilities in light of the facts of this case.

The district court’s conclusion is not clearly erroneous.  Thus, the order denying appellant’s motion for findings of overpayment of spousal maintenance for the year 2001 is within the district court’s discretion.

2.         Attorney Fees

The decision to award attorney fees “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (citation omitted), review denied (Minn. Feb. 18, 1999).  The district court may require one party to pay reasonable, need-based attorney fees for the other after considering the financial resources of both parties.  Minn. Stat. § 518.14, subd. 1 (2002).  A determination regarding attorney fees will rarely be overturned on appeal.  Burns v. Burns, 466 N.W.2d 421, 424 (Minn. App. 1991).

Need-based attorney fees shall be awarded where the court finds

(1)   that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

(2)   that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

(3)   that the party to whom fees, costs and disbursements are awarded does not have the means to pay them.


Nothing in this section precludes the court from awarding, in its discretion, additional, fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.


Minn. Stat. § 518.14, subd. 1.


Here, the district court made the required statutory findings to support an award of attorney fees when it found that appellant has the means to pay the attorney fees in part because his income substantially exceeds his needs; that respondent does not have the means to pay them because she is in debt and her income, even with maintenance payments, does not meet her needs; and that all motions were brought in good faith.  The district court did not abuse its discretion in its order for need-based attorney fees.

In addition, nothing precludes the district court from awarding, in its discretion, fees, costs, and disbursements against a party who unreasonably contributes to the length and expense of the proceeding.  Id. 

Appellant argues that, because he had to file motions with the court to get the court to properly apply the law regarding spousal maintenance, he was not in fact in contempt of court.  He claims that because he had overpaid spousal maintenance by $41,319.33 and “[t]hat amount of money is a large sum and was worth fighting for to receive the credit,” he was justified in not paying the maintenance obligation as ordered.  However, appellant provides no authorities to support his claim that when a party believes the district court erred in its award of maintenance it is permissible to withhold maintenance until the alleged error is corrected.

Minnesota law provides that disobeying a lawful court order may result in a finding of civil contempt.  Minn. Stat. § 588.01, subd. 3, (2002).  A lawful court order must be obeyed and is fully enforceable until the order expires or is modified.  Tell v. Tell, 383 N.W.2d 678, 682-83 (Minn. 1986).  Thus, even though appellant did overpay, appellant was obligated to pay respondent until the order was vacated.  Here, the record supports the district court’s finding that appellant had contributed to the length and expense of the proceeding by not making the spousal maintenance and child support payments on time. 

3.         Calculation of appellant’s income

Respondent filed a notice of review and a statement of the case on March 11, 2003.  This complies with this court’s filing requirements.  Minn. R. Civ. App. P. 106.  Respondent argues that the district court erred in calculating the net income of the appellant by not including his tax refunds and that it was not reasonable to allow appellant to contribute to his 401K plan because of his substantial retirement and investment assets.  Respondent’s basic argument is that, because appellant has greater income than was calculated by the court, necessarily her maintenance award should be higher.

As indicated above, maintenance awards are based on the parties’ needs and abilities to meet those needs.  Even if the district court found appellant’s income to be higher, this finding would not result in an increase in respondent’s maintenance award.  While the court found that respondent’s needs were $600 greater than her income at the time of the December order, the district court also found that respondent “is fully capable both physically and mentally of obtaining employment in which she would be better able to meet her financial needs.”

Thus, the issue of the calculation of taxes does not affect the ultimate conclusions of the court because appellant’s ability to meet his needs is already significantly greater than his actual need without considering additional income from taxes.  The purpose of an award of spousal maintenance is to provide “for the wife’s needs after divorce , not to provide her with a lifetime profit-sharing plan.”  Snyder v. Snyder, 298 Minn. 43, 53, 212 N.W.2d 869, 875 (1973) (citation omitted).  Even if the district court erred in its calculation of appellant’s net income, correction of the error would not change the outcome of the award of maintenance based on the statutory requirements for spousal maintenance awards.